MBA-backed bills on OUI, mandatory minimums advance

Issue November 2009 By Jennifer Rosinski and Bill Archambeault

Two bills backed by the Massachusetts Bar Association - one regarding drunk driving, the other mandatory minimum sentencing - are progressing after the Joint Judiciary Committee approved them Oct. 21.

The first, House Bill 1590, does not change the state's drunk driving laws, but rather, consolidates two operating-under-the-influence laws and the unwieldy number of amendments related to them. The bill was sponsored by Rep. Eugene O'Flaherty, D-Chelsea and co-chair of the Joint Judiciary Committee, Sen. Gale D. Candaras, D-Wilbraham, Peter J. Koutoujian, D-Newton, the MBA and the Boston Bar Association.

The second, Senate Bill 1651, sponsored by Sen. Cynthia Creem, co-chair of the Joint Judiciary Committee, and supported by the MBA, would reform mandatory minimum sentencing for certain nonviolent drug offenders.

The bills will be considered by their respective chambers, though no timeline has been established.

OUI law consolidation

The Massachusetts District Attorney's Association, with the support of the state's Executive Office of Public Safety and the Registry of Motor Vehicles, set about redrafting the Chapter 90 drunk driving laws to organize them more coherently for everyone from lawyers to defendants and victims. The MBA was asked to participate.

Middlesex Assistant District Attorney and Criminal Justice Section Council member Michael Fabbri worked on behalf of the MBA with MDAA Staff Attorney Andrea Nardone and others.

"What this draft does is rearrange the hodgepodge of provisions into a logical sequence so that hopefully, not only judges and attorneys, but parties, victims and members of the public can look at the law and determine more easily where to find relevant provisions," said MBA former Criminal Justice Section Council Chair Lee J. Gartenberg, director of Inmate Legal Services for the Middlesex County Sheriff's Dept.

"I want to stress that the MBA maintains its opposition to mandatory sentencing, so we are not embracing those provisions," he added. "We do, however, support the important concept of taking what is on the books and making it more usable to the benefit of everyone."

Mandatory minimum sentencing

The bill would allow certain nonviolent drug offenders to apply for parole after serving two-thirds of the maximum sentence imposed. Previously, the offenders could only be released upon completion of their entire sentence. The bill would apply to those who are currently incarcerated, as well as those sentenced in the future.

This measure allows authorities to consider parole based on an individual's previous record and one's efforts to rehabilitate. The state's Parole Board will make the final decision on an inmate's eligibility.

"This action is in line with the recognition of the drug problem as a health issue and not solely a criminal justice matter," said MBA General Counsel Martin W. Healy.

Parole will allow drug offenders who pose no threat to the public to successfully transition back to the community.

"This is a bill that has been a top priority of mine for several years. I am very pleased by this development, and I look forward to continuing to work both on shaping a final bill and on convincing other legislators that the time is right to make this sensible reform a reality," Creem said.

The reform is in keeping with the MBA's long-standing recommendations to eliminate mandatory minimum sentences, and is highlighted in a report released by the MBA in June, "The Failure of the War on Drugs: Charting a New Course for the Commonwealth." That report, written by the MBA's Drug Policy Task Force, calls for converting criminal prosecution of nonviolent drug offenders to treatment.

"This is a significant and positive development in the effort to reform harsh and ineffective sentencing practices in Massachusetts," said David W. White Jr., chair of the MBA's Drug Policy Task Force and a past president. "Sen. Creem's bill is an excellent starting point. The fact that a bill has come out of committee this fall should give us hope about additional bills seeing legislative action soon."

In addition to reducing prison overcrowding, the legislation would also be expected to save the state millions of dollars each year,